I will deal with each of these in turn.
61 1A. The plaintiff says that the old Act made no express reference to classes though it provided for variations so as to accommodate exceptions and factors of a specified kind. By contrast, the amended Act expressly empowers the Committee to determine different base rates for different classes of batch poultry.
62 Assuming there are different classes of batch poultry, then it is necessary to determine what those classes are before the Committee can fix the base rates for the different classes. If there are not different classes of batch poultry then only one rate can be determined for the lot.
63 Thus, the plaintiff submits it is only when the class of the poultry has been determined is it possible to proceed to the tasks set out in s 10(4) of determining the base rate for each class.
64 The first defendant says that at its meeting on 6 November 2002, the Committee determined classes by reference to the various categories that had been applied under the old Act. The first defendant then submits in italics in para 29 of their submissions, "The plaintiff does not assert that those categories were, as a matter of construction, incapable of constituting a class for the purposes of the amended Act". My problem with that is that as I have said earlier, although neither set of counsel wish to challenge the proposition, it seems to me to be clearly wrong.
65 However, if, as all counsel did, I put aside that thought, on the evidence there was a determination of classes on 6 November and Ground 1A must fail.
66 1B. The plaintiff says that the Committee constructively failed to exercise its jurisdiction in that it applied s 10 of the old Act instead of s 10 of the amended Act. In particular, the plaintiff complains that the Committee had used the 1994 model of a growing fee per bird based on a model farm concept. The plaintiff says this may have complied with the requirement under the old Act to endeavour to ensure a reasonable minimum return to growers while encouraging industry efficiency, but when there have to be classes of poultry and a base rate for each, it is of no assistance.
67 On the other hand, the first defendant says that, whilst it might be correct that the model cannot be equated to growers' costs within s 10(4)(b), and it might be based on industry figures as a whole, this did not disqualify it from being a relevant piece of information when addressing the factors that had to be considered under s 10(4). Indeed, it must have qualified as a relevant factor under subsection (4)(j).
68 In my view, the approach of the first defendant is the correct one. It may well have been that the general approach of the Committee was to deal with the exercise in much the same way as it had previously dealt with price determination under the old Act. However, this fact alone does not disqualify the procedure that it went through. It was obliged to take into account and focus on the factors referred to in subsection (4) and although these are differently stated to the way they were put under the old Act, there is considerable overlap.
69 The matters stated in the plaintiff's submission 6.12 that there are considerable difficulties in "adjusting" the data collected under the old scheme and applying it under the new scheme have some validity, but it seems to me that it is going too far to say that there was a jurisdictional error in considering this material if the Committee paid attention to the factors under s 10(4) of the new Act.
70 Ground 2. The plaintiff says that in making the determination the Committee failed to observe the statutory procedure required to be observed in making the decision. In other words, it did not focus on the matters in (a) to (k) of s 10(4). The plaintiff says that the evidence clearly shows that the Committee focused on factors (a) to (k), at least before the luncheon adjournment as they related to the industry as a whole and not to particular groups.
71 The submission notes that there is to be some significance given to the fact that the new paragraph (a) is inserted at the head of the list, that is, any suggested base rate agreed to by processors and growers. It is clear that that matter could not have been taken into account where there was no agreement reached between processors and growers.
72 I cannot, with respect, see the logic in this submission. If there is no agreement between processors and growers, then there is nothing to which factor (a) can apply, so that not taking it into consideration can be no error.
73 So far as (b) to (k) are concerned, the complaint is that they were considered on an industry wide basis, and scant, if any, attention was given to classes of poultry. The minutes record nothing more than that the paragraphs were considered and there were no findings relevant to each paragraph put in the minutes. Thus, the case is made out that there is no proper focus consideration on these matters.
74 The first defendant points to the evidence of Mr Slennett which was not challenged, nor contradicted, that although he cannot recall the specific words spoken, he did recall other members of the Committee in debate on the various motions making reference to factors (b) to (k) and he personally considered all of these factors.
75 There were, naturally enough, separate motions to determine a rate for each class.
76 I agree with the first defendant's submissions that there is just not the evidence to show that the factors were not considered.
77 Ground 3 is the converse of ground 2 and the same considerations apply.
78 Ground 4. The plaintiff says that whilst it admits that there is nothing inherently wrong with a statutory authority pursuing a policy consistent with the empowering act, it must not apply that policy inflexibly shutting its ears to an applicant who wishes to make representations about the particular circumstances of its case. These statements are clearly correct; see eg Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577. The first defendant's counsel does not cavil with them.
79 However, the first defendant's counsel says that this submission again fails for want of evidence. It is not forensically possible to hold on the evidence that the Committee refused to consider whether the plaintiff's operation fell into a different class. The Committee certainly did on 6 November 2002 determine that it would adopt the classes corresponding with pre-existing categories, but the only evidence as to why this was was that from Mr Slennett who said he considered it was unfair to change the basis seeing that chickens had already been supplied between July and November in the expectation of growers that they would be remunerated at the existing rates or according to the existing formulas.
80 Again, at the meeting of 18 December the plaintiff's proposal was put to the meeting, voted on and rejected.
81 I accordingly agree with the first defendant's submissions.
82 To sum up, the plaintiff's submissions are replete with accurate statements as to what is the applicable law as to the duty of a committee such as the present. However, bearing in mind what I have said about evidence in section C, particularly the words of Moffitt P in the Hale case, the plaintiff has not demonstrated that there is in fact an error which should be reviewed by this Court.
83 H. I can now turn to various ancillary matters, one of which is timing. It will be remembered that a determination cannot have effected unless approved by the Minister and takes effect on the date on which it is published in the Gazette. In the instant case, the determination was made by the Committee on 18 December 2002. The gazettal was 20 February 2003.
84 Mr Slennett sent to the Department the recommendations on about 17 January 2003, though it would appear from the minutes of the meeting of the Committee of 23 January 2003, that something more had to go to the Minister after that document. Accordingly, there was no determination with the approval of the Minister before the end of 2002.
85 Subsection (8) provides that no determination may be made to take effect on a date that is earlier than 1 January of the year in which a determination is made if it is made between 1 January and 30 June or 1 July of that year if the determination is made between 1 July and 31 December.
86 Subsection (5) speaks in terms of a determination made being required to be submitted to the Minister for approval. This tends to suggest that in subsection (8) it is the date of the resolution rather than the date of the Minister's approval or gazettal which is the date when the determination is made for the purpose of subsection (8). On this basis, it was appropriate for the gazettal to backdate the determination to 1 July 2002. The Act is not completely clear on this point and it may be that if other amendments are being made, this matter could be clarified at the same time.
87 I should note that an argument was raised that clause 9 of Schedule 3 of the Act could save any invalidity as a matter of timing and attention was focused on the word "subsequently". However, that clause clearly refers only to invalidities before 11 October 2002.
88 I. In view of what I have said above, it is not necessary to make any findings on the question as to whether there is in administrative law a doctrine close to that known as the doctrine of economy in ecclesiastical law, that is, that where a body cannot comply with the requirements of the rules it suffices that it does the best it can.
89 Mr Griffiths SC submitted there was no such doctrine in administrative law, but if there was, it was inapplicable in the instant case. The second half of this submission was put on the basis that it was not demonstrated by evidence that in the circumstances the Committee had done all that it possibly could to comply with the new Act.
90 There is a strong suggestion in the evidence of Mr Slennett that he was aware that the new Act had been passed in July 2002 but did not know when it was going to be proclaimed and did not know what period of time was going to be needed in order to be able to analyse the problem in terms of the new Act. In particular, he took the view that securing agreements between growers and processors was a key point of the new Act, but that such agreements would take time to negotiate out fairly and should not be forced upon the parties. The majority of the Committee seemed to have agreed with those suggestions.
91 It seems to me that if it were impossible to comply with paragraph (a) because of shortness of time, and the Committee did the best it could to comply with its spirit, then the determination would not be the subject of a successful challenge on the ground of non-compliance.
92 However, (a) properly construed means that if there are no agreements nothing needs to be considered in any event, it is not necessary to look at the proposition further. As counsel did not come prepared to address this proposition, again the factual material might be a little deficient as to whether the Committee did in fact do the best it could in all the circumstances.
93 I do not know of any direct authority for the supposed doctrine. However, it seems to me to be supportable by being consistent with the notion that one does not deal with questions of invalidity of administrative decisions in some mechanical way. Even if it can be seen that an administrator has not considered a factor, the Court may still allow the decision to stand if it considers that the factor was of minor importance; see the Peko-Wallsend case at p 40.
94 This doctrine fits in well with principles such as if an Act says that claims are to be on the prescribed form and no form is prescribed, the claimant is able to take advantage of the Act by using any reasonable form of claim.
95 J. In my view the present case was not one for certiorari to quash. Had it been a case for certiorari then there would have needed to be a complementary mandamus to require the Committee to fix a rate which it could not do because of the time restraints in subsection (8).
96 If there had been some relief available, it seems to me that the appropriate relief would have been a declaration. However, even here I have qualms.
97 The first is that the gazettal is one whole determination. It is headed "Base Rate Determination No 31" and then says "The following base rates apply …" before dealing with the nine separate categories.
98 Mr Griffiths says that it is subject to severance, but I very much doubt that this is so in the form in which it is drawn. Despite the lettered paragraphs the instrument is couched as one determination. However, it is certainly true that there is no problem with putting a blue pencil through the line which commences with "(d)".
99 The alternative submission is that s 32 of the Interpretation Act 1987 requires me to consider the determination to be valid except in so far as I have held it to be invalid.
100 This submission may well be correct. It is not necessary to go into the problems that the section raises. Suffice it to say that the present case would seem to come on the right side of the line of the test as set out by Dawson J in The Dingian; Ex parte Wagner (1995) 183 CLR 323, 347-8 and see Harrington v Lowe (1996) 190 CLR 311, 326-329.
101 However, my second and major qualm is the question of parties. It is clear from London Passenger Transport Board v Moscrop [1942] AC 332 onwards that declarations are not granted unless all really interested parties have been joined. The rule is one that comes under the head that declarations are a discretionary remedy.
102 In the instant case, the plaintiff informed me that all interested parties had knowledge that these proceedings were before the Court. I am not sure whether that is good enough. In the instant case, there are persons vitally affected by the declaration of invalidity that is being sought, not the least of whom are the growers who produce chickens for the plaintiff to process. What are the consequences if the determination in respect of the plaintiff is declared to be invalid? It may well that there is no rate declared and that because of subsection (8) none can ever be declared for the relevant period, yet these growers have been producing chickens on certain reasonable expectations.
103 In my view, despite what is said about no-one being interested in appearing despite knowledge of the proceedings, I would not have made a declaration of invalidity, at least without first giving the growers and others formal notification.
104 K. The result of the case is that the proceedings must be dismissed and I cannot see why the normal order should not apply, that is, they be dismissed with costs.
105 I should add that had it been argued that there had not been a proper determination of classes for the reasons I have noted earlier, I may have reached a different result. However, despite the principles of administrative law relied on and the technicalities raised, the plaintiff's real aim was to get the Committee to split its growers into two groups, those who produce chickens in tunnel shedding, and those who do not. The point that I have mentioned was not relied on because it would be completely contrary to the plaintiff's commercial purpose. It follows then, that the ordinary rule of costs must apply.
106 The proceedings are dismissed with costs.